Arbitrator says HHS bargained in ‘bad faith’ with NTEU

After a months-long saga, an independent arbitrator has said the Department of Health and Human Services has engaged in unfair labor practices with the National Treasury Employees Union.

The arbitrator has directed the two parties to return to the collective bargaining table.

“The agency committed an unfair labor practice by bargaining in bad faith,” the arbitrator’s decision reads. “The agency must cease and desist from bad faith bargaining. The matter shall be remanded to the parties until Nov. 19, 2019 for them to negotiate a resolution consistent with this opinion and award.”

NTEU said it received the 97-page decision, dated Sept. 12, late last week. The union filed a bad faith collective bargaining grievance back in August 2018, shortly after HHS declared an impasse in its negotiations last summer.

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The Federal Service Impasses Panel in April ruled on more than a dozen collective bargaining proposals, largely upholding the majority of HHS’ proposed changes to its existing agreement with the union. That decision from the impasses panel set the stage for HHS to begin implementing new policies on telework, leave and official time, which the union technically never agreed to.

But with the arbitrator’s new decision, NTEU said HHS must post a notice inside the department about the events that transpired and return to the bargaining table with the union.

HHS can appeal the arbitrator’s decision to the Federal Labor Relations Authority. If the department does appeal, the decision from the impasses panel will remain in place throughout the process.

If the department doesn’t appeal, the impasses panel’s decision would become invalidated, and both HHS and NTEU would, in theory, resume negotiations and report back to the arbitrator by Nov. 19.

NTEU on Monday urged the department to restart bargaining negotiations.

“This could have, and should have, been avoided,” NTEU National President Tony Reardon wrote in an Oct. 7 letter to HHS Secretary Alex Azar. “This decision is an opportunity to reset our negotiations and for HHS to meet us again at the bargaining table with a sincere desire to reach agreement on a contract, as required by law.”

In a statement, the department said it wouldn’t comment on pending litigation.

“HHS is working with employees and their union representation to improve the operations of the department with the aim of making the federal government a better place to work and better able to deliver the services to the American people,” a department spokeswoman said in an email to Federal News Network.

NTEU has said it approached HHS about reopening its contract back in July 2015. The two parties spent two years negotiating the ground rules for contract discussions but couldn’t agree.

By the union’s account, the president’s May 2018 executive orders on collective bargaining and official time revived those previously-stalled negotiations.

HHS in June offered bargaining proposals to NTEU, which originally excluded previously-agreed-to articles in NTEU’s current contract and detailed negotiated policies on telework, alternative work schedules, transit subsidies, performance awards and appraisals, and reassignments and details.

NTEU offered up its own proposals this summer. Both parties had met a few times briefly in July before HHS made a final offer. When the parties couldn’t agree, another impasse was declared.

The arbitrator’s decision focuses more on the negotiations between the two parties in July — before the impasse was declared.

Specifically, the arbitrator documented eight instances where it found HHS had bargained in bad faith. It faulted the department, for example, for calling an early end to a previously-agreed-to 18-week bargaining schedule, which, according to the arbitrator, HHS had alone instigated.

The department’s decision to end negotiations with the union before discussing the majority of the bargaining proposals at issue is “bad faith,” the arbitrator said.

“The termination of the bargaining sessions at the end of July 2018 was a unilateral action by the agency that was not a result of any NTEU actions, provocations, misconduct or bad faith bargaining,” the arbitrator said. “NTEU was clear and unequivocal in numerous communications that it did not believe the parties were at impasse and that it wanted to return to the bargaining table. HHS made unilateral decisions to force impasse and not return to the bargaining table.”

In addition, the arbitrator weighed in on the tenor and tone of the negotiations between the two parties.

“Good faith bargaining does require more than repeatedly saying no without dialogue,” the decision reads. “HHS characterized its approach as ‘hard bargaining.’ The agency seems to place the emphasis on the word ‘hard’ without giving any meaning to the word ‘bargaining.’ A refusal to discuss a proposal may be within the definition of ‘hard,’ but it is certainly not within the common usage and understanding of the work ‘bargaining’ in labor relations. The concept of ‘hard bargaining’ as practiced by the agency eliminated many of the core elements of what is commonly recognized as good faith bargaining such as discussion, openness to other perspectives, reflection and deliberation, concessions, flexibility and a willingness to engage and allow the communication process to unfold and progress at the actual bargaining table.”

The decision from the arbitrator comes as the Office of Personnel Management has instructed agencies to begin implementing all parts of the president’s workforce executive orders. The injunction on nine key provisions of the EOs lifted last week.

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